Technology Regulation History and Principles PDF

SMU Classification: Restricted Technology Regulation History and Principles  SMU Classification: Restricted In this Video… What is regulation? What does it mean to regulate technology?  SMU Classification: Rest...

SMU Classification: Restricted Technology Regulation History and Principles  SMU Classification: Restricted In this Video… What is regulation? What does it mean to regulate technology?  SMU Classification: Restricted What is Regulation? Regulation (ex ante) versus liability (ex post) (Shavell, 1984) E.g. speed regulations vs accident (tort) liability Standards set by regulators before accident vs set by courts after Different strengths and weaknesses Regulation falls on a spectrum (Moran, 2002) Formal regulation: legislation, subsidiary legislation, etc Quasi-regulation: standards that fall short of law, but have some kind of state backing, often through endorsement or enforcement E.g. “soft law” like Codes of Practice Self-regulation: standards written and enforced by industry bodies To understand regulation, we need to examine: What things regulate? What things are regulated? How and Why?  SMU Classification: Restricted What Things Regulate?  SMU Classification: Restricted Revisiting Code as Regulator Lessig: code … selected by code writers … constrain some behavior by making other behavior possible, or impossible. In this sense, they too are regulations, just as the architectures of real space code are regulations. As a regulator, “cyberspace creates a new threat to liberty…not new in the sense that no theorist had conceived of it before, but in the sense of newly urgent” Lessig uses “regulation” in the broad sense of general constraints on behaviour This would include liability.  SMU Classification: Restricted The Pathetic Dot Supply, Demand, Price (Formal) Regulations Liability rules Physical Space Other legal types Code (property rules, inalienability rules, etc) Culture, custom, ‘soft’ law  SMU Classification: Restricted The Car Radio Example We could change penalty to life imprisonment – threatened ex post sanction may make people stop Or, program radios to only work with a single car “The same constraint can be achieved through different means, and the different means cost different amounts” “From a fiscal perspective, it may be more efficient to change code than law”  SMU Classification: Restricted Key Insights Architecture matters, and always does Consider where your law school was located, and how that shaped behaviour Affects and is affected by law Technology is a type of architecture More recently also, “choice” architecture (Sunstein and Thaler) That is special because it is “newly urgent” Law can act directly on the target (person), or indirectly by changing other modalities  SMU Classification: Restricted What Things Are Regulated?  SMU Classification: Restricted Bennett Moses on Law, Reg, and Tech Many meanings of regulation General intentional influence on behaviour (Koops) Influence on behaviour following standards/goals with intended outcomes (Brownsword et al) Focus on behavioural influence more than positive rules See also: Lessig’s from earlier Technology as the regulatory target But, usually not well-defined beyond examples of cutting edge tech “Technology regulation” as a means of reducing harm from tech  SMU Classification: Restricted What is the Subject of Regulation? In most contexts in which technology regulation is discussed, the problem is associated with technology, and in particular with real or potential environmental, health or social harms that result from technological artefacts and processes. ‘Technology regulation’ could thus be the means employed (sometimes by government, sometimes more broadly) to reduce or eliminate such harms. This may be done by treating ‘technology’ as the regulatory target, and prohibiting the creation of particular artefacts or the use of particular processes. But, in line with the broad concept of ‘regulation’ and the fact that regulation is more likely to target social conduct than technology itself, it may be done through more subtle influences on designers and users, for instance by mandating particular courses in university engineering degrees or providing professional rewards for safety innovation. In such cases, the aim is to influence people in ways that will (hopefully) influence the shape of technological artefacts and processes. The target of technology regulation is thus complex. Much depends on how one defines ‘technology’ and whether one restricts the definition to ‘tools and crafts’ or incorporates all ‘means’. Q: Are we regulating technology, or regulating people?  SMU Classification: Restricted The ‘Right’ Way to Look at Tech Reg Moses suggests that “tech reg” scholarship has something to say more generally about law and how it deals with (socio-technical) change “Technology-specific” regulation as opposed to risk-specific regulation and ‘tech-neutral’ regulation Argues that the best “lens” is not ‘tech regulation’ but focusing on how to “protect values and minimise harm in light of an evolving socio-technical landscape”  SMU Classification: Restricted Yeong Zee Kin on Tech Regulation The regulation of technology is best understood by first recognising that this label is a misnomer. The law does not regulate technology in and of itself, but how technology is applied and supplied. (p 67) How does this compare with Moses’ conception of TechReg? Differences stem from what is understood as “technology” Do we include the business and social systems around the hardware?  SMU Classification: Restricted Yeong Zee Kin on Tech Regulation “Technology regulation” refers to the body of laws and regulations that apply to how technology is applied and supplied. (p 68) These serve certain policy goals Choice between legislation and regulation shaped by several considerations Laws seen as more overarching, with ex post enforcement Regulations as applying to specific roles, with ex ante standards and requirements This is an important framework, though the inclusion of both law and regulation in the definition of “regulation” has potential to confuse. Consider, in this framework: What things regulate? What things are regulated? How and why?  SMU Classification: Restricted Yeong Zee Kin on Tech Regulation Chapter delves into certain examples of “technology laws”, such as those applying to electronic transactions, internet infrastructure, radio spectrum, online content and platforms, etc In the next few segments we will cover some of these examples in more detail, starting with electronic transactions  SMU Classification: Restricted How Regulations Develop  SMU Classification: Restricted The Collingridge Dilemma At an early stage in a technology’s development, regulation was problematic due to the lack of information about the technology’s likely impact. At a later stage, regulation was problematic as the technology would become more entrenched, making any changes demanded by regulators expensive to implement. … This suggests that regulators wishing to influence technological design (to avoid or minimise risks of health, environmental and social harm, for instance) need to act at an early stage when the situation is more malleable. At an early stage, however, little is known about the prospects for the new technology, the harms it might cause or the forms it might take. Thus regulators face an ‘uncertainty paradox’, where they are forced to make decisions in the absence of reliable risk information or foreknowledge of technological developments. The extent to which these twin obstacles prove to be a dilemma depends on the rapidity and unpredictability of technological change, as well as the diffusion pattern associated with the technology in question. (from Moses’ paper)  SMU Classification: Restricted The Legal Tortoise and the Tech Hare? Time (and socio-tech change) as the key antagonist to law Is it always true that law crawls while tech leaps? Important concept that underpins many practical debates “It is too early to regulate now as doing so will stifle innovation” “We must regulate now before the risks actualise”  SMU Classification: Restricted In this Video… What is regulation? What does it mean to regulate technology?